Kingston Whig-Standard September 1/2001

Deloro challenge ends as last charge withdrawn by Sue Yanagisawa

The last remaining court challenge to the provincial government’s handling of contamination at an orphaned mining and smelting site north of Belleville was dropped late this week in an Ottawa courtroom.

The old Deloro mine site was recently in the news when it transpired that the drought had significantly raised arsenic levels in the Moira River in August. The 242-hectare Deloro property is the major contributor of arsenic and heavy metals to the Moira, which flows through Tweed and Belleville into the Bay of Quinte.

Question

Kingston environmentalist Janet Fletcher and friends at the Environmental Bureau of Investigation [EBI] and Energy Probe have questioned the government’s commitment to rehabilitating Deloro and protecting the health of people in the area since 1997.

Late in 1997, Fletcher, who is an associate director of EBI, laid eight charges against the ministry under the Fisheries Act and the Ontario Water Resources Act over arsenic and heavy metals migrating off-site. She undertook to prosecute the government privately for allowing continued contamination of the Moira River and Young’s Creek.

About one year later, Tom Adams, an Energy Probe executive director and EBI investigator, also laid a charge against the ministry under the Environmental Protection Act. The charge alleged that areas of Deloro accessible to the public were contaminated with radiation. Adams also sought to prosecute privately, but at that point, the Attorney General intervened and took over all of the charges.

On Thursday, Ian D. Scott, the lawyer contracted to prosecute the case by the Attorney General, withdrew the final EPA radiation charge. He cited his failure to secure convictions following a trial on the Fisheries Act and Water Resources Act charges in June.

Brendan Crawley, the Attorney-General’s media spokesman, said Scott had determined “there was no reasonable prospect of conviction, following his review of the [court] decision in June.”

In late June, after a protracted trial, Justice Celynne Dorval found that the ministry had permitted the discharge of arsenic and other contaminants from Deloro into the nearby Moira River as the charges claimed. She acquitted the government, however, after concluding the ministry had exercised “due diligence” in its efforts to clean up the property during the period covered by the charges.

The EBI and Adams had hoped that the government, in defending itself at trial, would be forced to reveal information about what was going on at Deloro during the 1950s and 1960s when radioactive wastes were being deposited there.

That revelation won’t happen now.

Energy Probe’s Adams said, “We’re just very disappointed.”

Even if they had won, Adams said, there wouldn’t have been any real financial impact on the ministry. Adams said the maximum fine would have been about $5,000, which in this case would have just moved from one government hand to another.

He had hoped, however, that a trial would “demonstrate the seriousness of radioactive pollution.”

Never applied

Adams observed that “although the [Environmental Protection] Act applies to radioactive pollution, it’s never been applied for that purpose.”

“Historically, all matters nuclear have come under the federal government,” he said.

“Nuclear matters have never been thought of, legally, as an environmental matter. They’ve always been put under the rubric of national security.”

The EBI, at one point in its investigation, made a Freedom of Information application to find out exactly what kind of radioactive material and how much was dumped at Deloro over several decades. The prohibitive price they were quoted for the search stopped them from pursuing it.

Adams enlisted the help of Dr. Hari Sharma, professor emeritus in chemistry at the University of Waterloo. Sharma took geiger-counter readings along the fence line of the old mining site and in the village on its doorstep. Adams claims they encountered readings that were “200 times over the limit set by the Canadian Nuclear Safety Commission for exposure to radiation in the environment.”

One benefit of laying the charge, he said, was that afterwards, “the government removed radioactive material from the town,” including a spot under the children’s playground.

The ministry also fenced in the property to keep out the unwary and children who had been playing inside the boundaries since the 1970s, unaware of the danger.

Fletcher said she may ask Ontario’s Environmental Commissioner to investigate the ministry’s certificate of approval for the site. The ministry granted itself a permit for twice the arsenic discharge recommended by its own provincial water quality objectives.

She has also considered asking for an investigation of the site’s entire operation.

The Ministry of Environment already investigated itself in 1998 and produced a two-volume report, according to Fletcher. She finds it ironic that the Attorney General’s office reviewed that report before deciding to pursue prosecution of her charges against the ministry.

Never made public

Fletcher said the report was never made public and was not introduced during the trial.

For its part, the ministry claims to have spent $16 million on the property, so far. Included in this sum is the cost of putting up a fence and conducting an environmental health risk study that concluded it’s safe to live in the village of Deloro.

Jim Ritter, who’s in charge of the Deloro Mine Site Clean-up Project for the ministry, claims another $18 million is earmarked for cleanup work expected to begin in 2002 and complete in 2005.

Adams suggested they might use the money to run the river through a pipe past the mine property or re-engineer the Moira’s course, diverting it from the polluted land.